2005 PLP 1740 (CLC)

This civil revision has been filed to challenge the order (amounting to decree) dated 15-7-2004 whereby a Civil Judge 1st Class, Bahawalnagar while dismissing petitioner's application for temporary injunction, also rejected the plaint under Order VII, rule 11, C.P.C. and judgment and decree dated 19-10-2004 passed by learned Additional District Judge, Bahawalnagar by which petitioner's appeal against rejection of his plaint by the learned trial Court, was also dismissed.

2. Facts briefly stated are that petitioner feeling aggrieved against the order dated 13-10-2003 passed by D.C.O./respondent No.1 regarding sanction of Nakka-jaat by respondent No.2/S.D.C.O. vide order, dated 23-6-1999, filed a suit for declaration and permanent injunction. Along with the suit an application for temporary injunction was also riled seeking a restraint order against the respondents from implementing the order, dated 13-10-2003 of respondent No. 1, till the final decision of the suit. The suit as well as application were contested by respondent No.3 only, by way of filing written statement and reply. The learned trial Court, thereafter, heard arguments on application ror temporary injunction but while deciding the said application on 15-7-2004 not only dismissed the application but also rejected petitioner's plaint under Order VII, rule 11, C.P.C. against the above-said order of learned trial Court, the petitioner filed an appeal but the same was also dismissed by a learned Additional District Judge, Bahawalnagar vide judgment and decree dated 19-10-2004. hence, this civil revision.

3. Before this Court, learned counsel for the petitioner has mainly argued that plaint could only be rejected within four corners of under Order VII, rule 11, C.P.C. whereas a perusal of' the plaint did show that it did disclose a cause of action to be challenged through the civil suit. He has further argued that it has been held time and again by the superior Courts that while deciding petition under Order XXXIX, rules 1 and 2, C.P.C., even if the Court finds that plaintiff has failed to make out a prima facie case, it can only refuse to grant temporary injunction and dismiss the application under Order XXXIX, rules 1 and 2, C.P.C. but this dismissal cannot result in the rejection of plaint at a preliminary stage when the plaintiff has not led any evidence in support of his case and rejection of plaint is only possible if the Court reaches to the conclusion on consideration of statement contained in the plaint and other material available on the record before the Court which the plaintiff admits as correct. He further argued that while rejecting the plaint the Court cannot travel beyond the contents of the plaint, much less taking into consideration the view point of the defendant or after going through the material contained in the written statement and the documents placed on record by the defendant. While arguing so, the learned counsel has placed reliance on the case Jewan and 7 others v. Federation of Pakistan through Secretary, Revenue, Islamabad and 2 others 1994 SCMR 826.

4. On the other hand, learned counsel for private respondent No.3 has argued that the two Courts below have rightly non-suited the petitioner as neither the bare reading of the statement of the plaint disclosed cause of action nor the Civil Court had jurisdiction to try the petitioner's suit. Further argues that the petitioner having not come to the Court with clean hands, was guilty of abuse of process of law for ulterior motives hence the two Courts below acted lawfully and with lawful authority.

5. I have given my considerations to the arguments of learned counsel for the parties, perused the relevant record and have also gone through the case-law.

6. Prima facie the contention of the learned counsel for the petitioner is sustainable. A bare perusal of the judgment of the Honourable Supreme Court of Pakistan referred to above, makes it abundantly clear that neither the plaint can be rejected while deciding application for temporary injunction nor the Court while rejecting the plaint can take into consideration the material other than the contents of the plaint as well as the material produced by the plaintiff. It is clear A from the tenor of the order of the trial Court that all what has been stated therein relates to the ingredients required to be proved by the plaintiff for obtaining temporary injunction. Not a single word has been said by the trial Court about the contents of the plaint or the material attached with it. Similarly, the learned Appellate Court has decided the matter while taking into consideration either extraneous material or the facts which could only be proved after recording of evidence. The question whether the petitioner was guilty of making any tampering with the record or that he was not given any notice before passing of the order dated 13-10-2003 passed by respondent No. I and impugned in the suit, are the questions of fact which could only be decided after recording evidence as well as proper trial.

7. The judgments and decrees or both the Courts below are not only violative of the provisions of law as contained in Order VII, rule 11, B C.P.C. but also in clear disregard to the law declared by the Honourable Supreme Court of Pakistan in Jewan and 7 others v. Federation of Pakistan through Secretary, Revenue, Islamabad and 2 others 1994 SCMR 826, referred to above, which to me amounts to contempt of Court, because it is the mandate of Article 189 of the Constitution of Islamic Republic of Pakistan, 1973 that decisions of the Honourable Supreme Court of Pakistan are binding on all the Courts in Pakistan, so far as such decisions decide a question of law or enunciate a principle of law. The judgment of the Honourable Supreme Court cited above since constitutes a law in terms of Article 189 of the Constitution of Islamic Republic of Pakistan, 1973, hence binding on all the Courts in terms of said Article. Therefore, the findings recorded by both the Courts below are not only against law but also contravene the expressed mandate of the Constitution as contained in Article 189 thereof.

8. The upshot of above discussion in that this Civil Revision is allowed, the judgments and decrees of the two Courts below are set aside and the suit filed by the petitioner shall be deemed to be pending before the trial Court. The trial Court shall now pass a separate fresh order on the application filed by the petitioner for temporary injunction, after hearing both the parties and shall proceed to decide the suit in accordance with law.

9. While hearing such-like cases after my elevation as a Judge of the High Court, I have come across a general tendency being developed in the trial Courts and even in the Appellate Courts confirming the orders of the trial Court, to reject the plaint while deciding application for temporary injunction and in derogation of expressed provision of order VII, rule 11, C.P.C. This tendency needs to be strictly curbed by taking a serious view of the matter in order to save the public from indulging into litigation by way of filing appeals and revisions up to this Court due to unlawful orders of the subordinate Courts and also to ensure the safe administration of justice and law through competent judicial officers. I, therefore, direct the Additional Registrar of this Bench, to send a copy of this judgment to the concerned Civil Judge as well as the relevant Additional District Judge, Bahawalnagr, through District Judge, Bahawalnagar with a direction to submit their written explanations within one month as to why the matter be not taken up on administrative side and the learned Inspection Judge be requested to recommend proceedings against them, for not only passing the judgment in violation of the law declared by Honourable Supreme Court of Pakistan in the above-referred authority as well as subsequent case-law and also for acting in clear violation of Article 189 of the Constitution of Islamic Republic of Pakistan, 1973. The explanations so submitted shall be placed before me in Chambers.

10. It is expected that this observation/direction would be taken by all members of the Judiciary in the Province as an alarm and they would in future while passing the order be strictly guided with the law declared by the superior Courts and in future any such lapse is brought to my notice. I would not hesitate to launch contempt proceedings against such Judicial officer, besides recommending the worthy Chief Justice for initiating disciplinary proceedings against him. M.H./I-96/L Case remanded.